Interpretation Catalysts in Cyberspace

By Ingber, Rebecca | Texas Law Review, June 1, 2017 | Go to article overview

Interpretation Catalysts in Cyberspace


Ingber, Rebecca, Texas Law Review


Introduction

The cybersphere offers a rich space from which to explore the development of international law in a compressed time frame. Rapidly advancing capabilities and novel events distill and sharpen longstanding debates in international law: questions involving how the law adapts to new technologies; disagreement over the extent to which secret action can move custom;1 disputes over the need for heightened transparency;2 and power wrangling between states and soft law endeavors in driving the development of the law. In particular, the continuously evolving need to determine how existing laws apply to shifting capabilities provides fertile ground for innovative legal positioning and interpretation. That constant innovation in turn creates opportunities for discrete triggers for legal interpretation-or "interpretation catalysts" as I have termed them elsewhere3-to influence the path that legal evolution takes. Interpretation catalysts not only compel a decision-making body to take a position on its interpretation of a legal rule; they shape all aspects of the decision-making process, ultimately influencing the legal position that body takes, and often the resulting law itself.4

In this generative space of cyber law, the Tallinn Manual processes of the past ten years provide a valuable lens through which to witness the effects of interpretation catalysts on the evolution of international law. The Tallinn processes have been remarkable achievements, both in producing manuals that navigate the web of international laws regulating state action in cyberspace, and in driving states to consider and to continue to develop the rules governing this space. The two Tallinn Manuals5 lay out for states not only an experts' sense of where consensus on the law currently stands, but also-and just as importantly-the parameters of precisely where the disagreements among states may lie, where there might be room for movement, and what the outer parameters of that movement might be. And for academics, the Tallinn processes also provide a unique case study to consider the development of international law over a short period of time and the influence of soft law processes on that development.

In particular, the Tallinn Manual processes and resulting manuals provide insight into how these "interpretation catalysts," or discrete triggers for legal interpretation, influence the path that legal evolution takes.6 The operative interpretation catalyst triggering the need for a legal decision influences every aspect of decision making from the identity of the particular players involved in an interpretative endeavor to the task before them, the context in which they operate, and the investment in the project by the relevant players.7 In the Tallinn processes, those players have included not only the experts around the drafting table but also states watching and engaging from the sidelines. All of these factors shape where the law-or the interpretation of the law-ultimately lands.8

In prior work, I have explored the phenomenon of "interpretation catalysts" through the lens of state decision making, specifically U.S. executive branch legal decision making on matters of national security.9 In that context, the lack of external checks on the U.S. President often means that the executive branch legal position is virtually the only operative legal constraint.10 The interpretation catalyst driving such executive branch decision making therefore has an enormous influence not just on one party's opening legal position but on the governing law itself.11

In the case of the Tallinn processes, as I will elaborate in Part II, interpretation catalysts operate on two levels. The initial interpretation catalyst, the Estonia cyberattacks, impelled states to consider the applicable legal framework to apply to those attacks. Most significantly for our purposes, those events triggered the initiation and development of the first Tallinn Manual process itself, thus setting those wheels in motion. …

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